Citation Nr: 21027019 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-32 776 DATE: May 4, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a traumatic brain injury (TBI) with headaches and seizures is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD)) other than nightmare disorder is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for bilateral visual trauma is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for sleep disorder, diagnosed as nightmare disorder, is reopened. New and material evidence having been received, the claim for entitlement to service connection for left foot condition is reopened; to this extent only, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for entitlement to service connection for bilateral tinnitus is reopened; to this extent only, the claim is granted. The appeal for entitlement to a disability rating in excess of 10 percent for right wrist sprain is dismissed. The appeal for entitlement to a disability rating in excess of 10 percent for right knee sprain is dismissed. The appeal for entitlement to service connection for left knee condition is dismissed. The appeal for entitlement to service connection for bilateral hand condition is dismissed. The appeal for entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for sleep disorder, diagnosed as nightmare disorder is granted. REMANDED Entitlement to service connection for a traumatic brain injury with headaches and seizures is remanded. Entitlement to service connection for an acquired psychiatric disorder other than nightmare disorder is remanded. Entitlement to a disability rating in excess of 10 percent for lumbar strain is remanded. Entitlement to service connection for bilateral visual trauma is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to service connection for left foot condition is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. A June 2012 rating decision denied service connection for a left foot condition, traumatic brain injury, headaches, seizures, bilateral visual trauma, a sleep disorder, bilateral tinnitus, anxiety, left knee condition, bilateral hand condition, and bilateral hearing loss, and entitlement to increased disability ratings for right wrist sprain and right knee sprain. The Veteran was notified of that decision, but did not perfect an appeal. 2. Evidence associated with the record since the June 2012 rating decision includes evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left foot condition, traumatic brain injury with headaches and seizures, bilateral visual trauma, a sleep disorder, bilateral tinnitus associated with a head injury, and an acquired psychiatric disorder. 3. At the January 2021 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran's attorney requested withdrawal of the appeal for entitlement to service connection for left knee condition, bilateral hand condition, and bilateral hearing loss, and entitlement to increased disability ratings for right wrist sprain and right knee sprain. 4. The Veteran's nightmare disorder is at least as likely as not etiologically related to active duty service. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying the Veteran's claims for entitlement to service connection are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left foot condition, traumatic brain injury with headaches and seizures, bilateral visual trauma, a sleep disorder, bilateral tinnitus associated with a head injury, and an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for withdrawal of entitlement to service connection for left knee condition, bilateral hand condition, and bilateral hearing loss, and entitlement to increased disability ratings for right wrist sprain and right knee sprain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for entitlement to service connection for sleep disorder, diagnosed as nightmare disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served during the Gulf War era on active duty from August 2007 to August 2011. The Veteran is a recipient of the Combat Action Ribbon. These matters are before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the Veteran's electronic claims file. Withdrawal of Appeal 1. Entitlement to a disability rating in excess of 10 percent for right wrist sprain 2. Entitlement to a disability rating in excess of 10 percent for right knee sprain 3. Entitlement to service connection for left knee condition 4. Entitlement to service connection for bilateral hand condition 5. Entitlement to service connection for bilateral hearing loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See generally Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In the present case, the Veteran's attorney requested to withdraw the appeal as to the issues of entitlement to service connection for left knee condition, bilateral hand condition, and bilateral hearing loss, and entitlement to increased disability ratings for right wrist sprain and right knee sprain at the January 2021 hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria as they were explicit, unambiguous and done with a full understanding of the consequences of the withdrawal. Thus, there remains no allegations of errors of fact or law for appellate consideration as it relates to these issues. Accordingly, the Board does not have jurisdiction to review the issues and they are dismissed. New and Material Evidence A claim of entitlement to service connection for a left foot condition, traumatic brain injury with headaches and seizures, bilateral visual trauma, a sleep disorder, bilateral tinnitus associated with a head injury, and an acquired psychiatric disorder was previously denied, and the Veteran seeks to reopen this claim. As an initial matter, the Board notes that the Veteran originally filed a claim for entitlement to service connection for anxiety and bilateral hearing loss. See July 2011 claim. As captioned above, the issues have been recharacterized as entitlement to service connection for an acquired psychiatric disorder and bilateral tinnitus. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. 6. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a traumatic brain injury with headaches and seizures 7. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder 8. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral visual trauma 9. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for left foot condition 10. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for entitlement to service connection for bilateral tinnitus The RO previously denied the Veteran's claim in a June 2012 rating decision, as the Veteran did not report for scheduled VA examinations. The Veteran did not submit new evidence or perfect an appeal to the Board of this decision. As such, this decision became final. The Veteran petitioned to reopen his claim in November 2013. Since the June 2012 rating decision, the Veteran has submitted new evidence in the form of VA treatment records. A Board hearing transcript, a September 2014 audio VA examination report, September 2014 VA examination reports for TBI and PTSD, and VA treatment records have also been associated with the record. The January 2021 Board hearing testimony, VA examination reports, and VA treatment records were not previously considered by agency decision makers and address one or more of the in-service incident, current diagnosis, and nexus elements of the Veteran's service connection claims. Therefore, the evidence is considered new and material, and the claim of service connection for a left foot condition, traumatic brain injury with headaches and seizures, bilateral visual trauma, a sleep disorder, bilateral tinnitus associated with a head injury, and an acquired psychiatric disorder is reopened. To this extent only, the Veteran's claim is granted. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 11. Entitlement to service connection for sleep disorder, diagnosed as nightmare disorder The Veteran asserts that he has a nightmare disorder which is related to events during active duty service. The Veteran served in the United States Marine Corps from August 2007 to August 2011. His DD Form 214 indicates that he had service in Afghanistan and was awarded the Combat Action Ribbon. His service treatment records (STRs) are unremarkable for complaints of nightmares; however, in a TBI questionnaire completed just prior to discharge, the Veteran reported sleep disturbance. At the January 2021 Board hearing, the Veteran testified to entering a family home in Afghanistan where weapons were being held for enemy forces and witnessing the shooting of family members who were caught in the crossfire. The Veteran testified to currently experiencing nightmares related to the incident, including screaming during sleep and waking up throughout the night. The Veteran testified that this happened every other night. The Veteran was afforded a VA examination in July 2014. The examiner diagnosed the Veteran with a nightmare disorder. The examiner opined that the Veteran's nightmare disorder is at least as likely as not incurred or caused by an in-service event. After considering the Veteran's report of the in-service event, the examiner explained that although there is no medical evidence showing in-service complaints of or treatment for nightmares, the Veteran's nightmare disorder is consistent with his service and therefore more likely than not caused by the in-service event. The Veteran contends that the nightmares he began to experience after service are attributable to events he experienced in service during deployment to Afghanistan. The Veteran's accounts of his experience are consistent with the time and place of his service. The 2014 VA examiner considered the history and the Veteran's statements and persuasively explained her conclusion that the Veteran has a mental disorder, nightmare disorder, that can be attributed to his experiences in service. The Veteran's accounts and the examiner's supporting opinion are sufficiently persuasive to warrant the grant of service connection for the nightmare disorder. As such, entitlement to service connection for a nightmare disorder is warranted. REASONS FOR REMAND The Board notes that the most recent VA treatment records associated with the claims file by VA are dated February 2014. It appears that the Veteran has requested some VA treatment records post February 2014 and has submitted those as evidence in this appeal. On remand VA should associate all VA treatment records from February 2014 to the Present with the record, as directed below. 1. Entitlement to service connection for a traumatic brain injury with headaches and seizures is remanded. The Veteran asserts that he was exposed to improvised explosive device (IED) detonations and/or experienced loss of consciousness on seven occasions during his deployment to Afghanistan, and that he experienced a TBI with residuals of headaches and seizures. Additional evidence has been associated with the file since the Veteran was last afforded a TBI VA examination in July 2014. Specifically, the Veteran testified at the January 2021 Board hearing that he has a scar near his left eye as the result of an IED explosion, that he currently experiences seizures once every two to three months, and that he has been prescribed medication to treat migraines. VA treatment records associated with the record since the July 2014 VA examination indicate that the Veteran experiences spells of altered awareness with complex motor behaviors that could represent focal seizures. The record also indicates that the Veteran has been prescribed medication for treatment of seizures and that his driving has been restricted by VA providers. See May 2016 VA Neurology Physician Note. As the Veteran's statements from the January 2021 Board hearing and recent VA treatment records were not considered by the July 2014 VA examiner, a remand is necessary. 2. Entitlement to service connection for an acquired psychiatric disorder other than nightmare disorder is remanded. The Veteran asserts that he has recurring thoughts of the event that occurred during his deployment to Afghanistan and that he has difficulty maintaining family and social relationships. See January 2021 Board hearing testimony. VA treatment records show that the Veteran has reported a history of anxiety, panic attacks, and depression which were treated with medication. The Veteran was referred for a mental health evaluation, although no records of this evaluation have been associated with the claims file. See October 2012 and November 2012 VA treatment records. In a July 2014 VA examination, the examiner noted that the Veteran has dreams of combat experiences "a couple nights a week", and that the Veteran has subclinical anxiety as his symptoms were not severe enough for a diagnosis of a psychiatric condition related to anxiety. The VA examiner determined that the Veteran's reported stressor meets the criteria for a diagnosis of PTSD and that the stressor is related to fear of hostile military or terrorist activity, but ultimately determined that the Veteran's symptoms do not meet the criteria for PTSD under DSM-IV or DSM V. As the medical opinion did not fully consider the Veteran's statements regarding his symptoms, including the testimony at the January 2021 Board hearing, and VA treatment records indicate the existence of additional mental health treatment records, a new examination is needed. 3. Entitlement to a disability rating in excess of 10 percent for lumbar strain is remanded. At his January 2021 hearing, the Veteran testified that his back condition has worsened since his last VA examination and that he experiences flare-ups requiring emergency room treatment. The Board notes that nearly seven years have passed since the Veteran's last VA examination, and that VA treatment records show emergency room visits for back pain in September 2019 and June 2020. Accordingly, the Board finds that remand is warranted for another VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]). Additionally, in reviewing the adequacy of the existing VA examination reports, certain range of motion testing must be conducted whenever possible in cases of joint disabilities. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). "[T]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint" Correia, 28 Vet. App. 158. The June 2014 VA examination of the Veteran's lumbar spine does not comply with Correia. The Board also notes that the Veteran reported flare-ups at the June 2014 VA examination, but that the examiner stated that he was unable to estimate the additional loss of range of motion during a flare-up without resorting to mere speculation. As such, the Board finds the June 2014 to be inadequate pursuant to the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). A new VA examination is necessary to determine the current severity of the Veteran's lumbar strain. 4. Entitlement to service connection for bilateral visual trauma is remanded. At the January 2021 Board hearing, the Veteran testified that he experiences poor depth perception which began during his service in Afghanistan. VA treatment records shows complaints of problems with depth perception at a VA primary intake appointment in October 2012. Instructions were written for an eye clinic referral, although no records of an eye clinic evaluation have been associated with the claims file. The Veteran has not been afforded a VA examination for the claimed eye condition. To ensure a full and fair adjudication of the Veteran's claim, any VA treatment records relevant to the Veteran's claim should be associated with the file and the Veteran should be afforded a VA examination. 5. Entitlement to service connection for bilateral tinnitus is remanded. The Veteran asserts that his tinnitus began in May 2014 as the result of head trauma after an IED explosion. In a July 2014 VA medical examination report, the examiner diagnosed recurrent tinnitus. Upon review of the claims file and the Veteran's statements, the examiner opined that the Veteran's tinnitus is at least as likely as not caused by head trauma. As such, the Board finds that the issue of entitlement to service connection for tinnitus is inextricably intertwined with the Veteran's TBI claim, which has been remanded above. 6. Entitlement to service connection for left foot condition is remanded. At the January 2021 Board hearing, the Veteran testified that he developed a permanent callus on the tip of the second toe of his left foot during military service. The Veteran asserts that be experiences blisters with too much walking or running, that walking is painful, and the condition resolves at times and then flares up. The Veteran has not been afforded a VA examination for a foot disability. As the Veteran's statements indicate that he has recurrent symptoms of a disability that may be associated with his military service, a VA examination is necessary. 7. Entitlement to a total disability rating based on individual unemployability is remanded. Prior to the above grant of entitlement to service connection for a nightmare disorder, the Veteran did not meet the requirements for a TDIU on a schedular basis. As such, the Veteran's claim of entitlement to TDIU is inextricably intertwined with any rating assigned for his now service-connected nightmare disorder, and with the issues of service connection for TBI, acquired psychiatric disorder other than nightmare disorder, bilateral visual trauma, bilateral tinnitus, and a left foot condition; and increased disability rating for lumbar strain which are being remanded. Therefore, the issue of entitlement to a TDIU is remanded pending resolution of the claims. Further, in 2014 VA requested that the Veteran submit VA Form 8940 in connection with his claim. The Veteran has not yet provided this information. On remand, the Veteran should again be sent these forms and should be directed to complete and return these forms. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (when a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2014 to the Present. 2. After the development above is completed, schedule the Veteran for a VA examination in accordance with VA TBI protocol. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. The examiner should answer the following question: (a.) Does the Veteran currently have a TBI? (b.) If so, is it at least as likely as not (i.e. probability of 50 percent or more) that the Veteran's TBI had its onset during or is otherwise related to his military service? (c.) Additionally, the examiner must address whether the claimed residual symptoms of headaches and seizures are consistent with the Veteran's statements that he was thrown 10 feet in the air and hit his head after an IED explosion, and that he was ultimately exposed to seven IED explosions while deployed to Afghanistan. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination by a VA psychiatrist or psychologist to determine the nature and likely etiology of his claimed psychiatric disability other than nightmare disorder. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following: (a.) What is (are) the diagnosis(es) for the Veteran's current psychiatric disability(ies) other than nightmare disorder? (b.) For each psychiatric disability diagnosed other than nightmare disorder, please provide an opinion as to whether such is, at least as likely as not (50 percent or better probability), related to the Veteran's service. (c.) If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. Schedule a new examination to evaluate the severity of the Veteran's lumbar strain. The claims folder must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees). The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 5. Schedule a skin conditions VA examination for the Veteran's claimed left foot condition. Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of his disorder, please answer the following: (a.) Identify any current skin disability of the Veteran's left foot and/or the second toe of the left foot. (b.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed condition had an onset during service, or is causally or etiologically due to service? A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Schedule the Veteran for a VA examination for his bilateral eye condition, claimed as loss of depth perception. The examiner should review the entire claims file and a note that such review was completed should be made in his or her report. The examiner should answer the following questions: (a.) Identify any current eye disability. (b.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed condition had an onset during service, or is causally or etiologically due to service? A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. The Veteran should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.